Summary
stating “the emphasis on the employee's intent does not mean that the intent must actually exist”
Summary of this case from Clark v. State ex rel. Dep't of Workforce Servs.Opinion
No. 279.
Submitted September 4, 1974. —
Decided October 1, 1974.
APPEAL from a judgment of the circuit court for Dane county: WILLIAM C. SACHTJEN, Circuit Judge. Affirmed.
For appellant Department of Industry, Labor Human Relations there was a brief by Uclair W. Brandt, chief counsel, and David A. Pearson, assistant chief counsel.
For the respondent there was a brief by Davis, Kuelthau, Vergeront, Stover Leickuss, S.C., attorneys, and Walter S. Davis and John P. Savage of counsel, all of Milwaukee.
This is an unemployment compensation case. The Department of Industry, Labor Human Relations (hereinafter department) affirmed the findings of an appeal tribunal that the claimant, Willard D. Walker, was unemployed for twenty-one weeks by reason of a disciplinary suspension, that the suspension was for "other good cause," but not for "misconduct connected with his employment." Sec. 108.04 (5) and (6), Stats. An initial determination made by a deputy commissioner found that the discharge was for "misconduct" and that therefore Walker was ineligible for benefits. The department appeals from the judgment of the circuit court reversing the department's determination.
The defendant, Willard Walker, was employed by the Speed Queen Division of McGraw-Edison Company (hereinafter employer) at the Speed Queen plant in Ripon, Wisconsin. He had been employed for about three years until February 16, 1971.
Walker was a punch press operator and on February 16, 1971, he was operating the fourth press in a line of four punch presses which perform consecutive operations. The presses were being used to manufacture metal laundry drying machine tops. The tops weigh about 10 pounds and measure 28 x 30 inches with two inch flange edges on all four sides.
Norman Krause, a coemployee, operated the third press in the line. After he performed his operations on the dryer tops, Krause would push the tops through his press to a slide which would take the tops to Walker's work station. The opening through which Krause pushed the tops was 13 inches high and four feet wide. There is a four-inch drop from Krause's punch press to the slide. The slide measures seven-feet long and has an incline of about 25 degrees.
At 6:40 p. m. on February 16, 1971, Walker was treated for a cut finger. Shortly after that, the incident for which Walker was suspended occurred. After Walker returned to his station he discovered that the tops coming to him were scrap, apparently because of a slug in one of the other presses. At the hearing before the appeal tribunal, Walker testified that he tried to tell Krause to stop the line. Although Krause testified that he could not recall Walker saying anything to him, he did testify that the problem of the slug in a press was brought to his attention by Walker and that he had to clear his machine.
Walker testified that Norman Krause got mad and jammed the top down his slide. Krause stated that he ran one top to check his press and pushed it out of his machine onto the slide. Walker had his previously injured finger between two tops which were already on the slide. Walker's finger was pinched between the tops and he suffered "quite a bit" of pain. Walker reacted by throwing or pushing a dryer top back toward Krause's press. Krause was struck by the top which came "flying" back through his press. His arm was cut by the top and he had to be taken to the hospital for stitches and Krause now has scars from these cuts measuring two and one-half inches long and three-eighths of an inch wide.
There is conflicting evidence as to whether Walker pushed a dryer top or threw it and as to whether the top which Walker pushed or threw was the one which hit Krause or if it hit another top which then hit Krause. The night shift superintendent, Herbert Buchholz, testified that on the night of the incident Walker told him that he got mad and threw the dryer top. Walker's testimony was that he pushed the top. Initially, Krause had stated that he couldn't see Walker at the time the top hit him, but at the appeal tribunal hearing, he stated that he did see Walker throw the top at him. There was also evidence that the company had three individuals attempt to push a dryer top up the slide and through the press and that it was their conclusion that it could not be done and that a top would have to be thrown to go through the press as it did.
Following the incident, Walker was suspended. The suspension was changed to a discharge. Following grievance procedure meetings, the discharge was changed back to a suspension and Walker was to be allowed back to work subject to certain conditions. The action by the company was based on a work rule which provided that the penalty for gross negligence or reckless conduct with respect to the safety and welfare of self and others was discharge.
On March 23, 1971, Walker applied for unemployment compensation benefits. The employer has alleged that Walker is ineligible for such benefits on the grounds that he was discharged for misconduct connected with his employment.
The initial determination of the examiner that Walker was not eligible for benefits was appealed and a hearing was held before the appeal tribunal. The appeal tribunal reversed the examiner's determination.
The following findings were made:
". . . The employe pushed the top panel away from him and back toward the number two press, with the result that a top panel being put into press number two by its operator, or a top, panel on the slide-tray next to such press, came back through such press and hit its operator, cutting him severely on the arm. It was not established that the top, panel that the employe pushed was the one that cut the other employe on the arm. It was also not established that the employe had any intention of injuring the other employe, or that he could have foreseen that his action in pushing the dryer top panel away from his injured finger might result in injury to anyone.
"Although the employe might have used more force than was necessary to remove the offending top panel from its position against his injured finger, his conduct under the circumstances was not so unreasonable as to constitute gross negligence or reckless disregard of the welfare of others, amounting to a violation of the employer's safety rule.
"Although the employe's conduct in the instant case could well be regarded as unsatisfactory conduct which would justify a disciplinary suspension for good cause other than misconduct connected with his employment, it appeared to be a single isolated instance of unsatisfactory conduct not evincing that wilful, intentional and substantial disregard of the employer's interests that would constitute misconduct connected with his employment.
". . .
"The appeal tribunal therefore finds that the employe was not discharged for misconduct connected with his employment, within the meaning of section 108.04 (5) of the statutes.
"The appeal tribunal further finds that such disciplinary suspension was for other good cause connected with his employment, within the meaning of section 108.04 (6) (b) of the statutes, and that the employe is ineligible for benefits for the first three weeks of such disciplinary suspension."
The department affirmed the decision of the appeal tribunal. The employer then brought this action to review that decision. The circuit court reversed the department and found that Walker was guilty of "misconduct" and that he was, therefore, not entitled to unemployment compensation benefits. The court stated in its memorandum decision that Walker either "pushed or threw" a dryer top with sufficient force and speed to go up the slide, through the press and hit Krause before he could get out of the way. This statement is contrary to two findings of fact made by the appeal tribunal and affirmed by the commission. The court then quoted the definition of "misconduct" found in Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259, 296 N.W. 636, and noted that whether certain conduct constitutes "misconduct" is a question of law. While the court noted that the employee's intent is crucial, it held that such intent can be inferred from the degree of negligence of the act. Because of the "grave danger of hurling" the dryer top, the court found the act to be "misconduct" whether or not Walker actually formed an intent to hit the employee.
Two issues are presented on this appeal:
1. Did the trial court err in enlarging upon the findings of fact made by the department?
2. Did Walker's conduct constitute "misconduct connected with his employment" as that term is used in sec. 108.04 (5) and (6), Stats.?
Findings of fact.
The circuit court enlarged upon the findings made by the appeal tribunal by stating that Walker either pushed or threw the dryer top. The court also referred to the "hurling" of the top. The court also, in effect, stated that the top put in motion by Walker was the one which hit Krause. The appeal tribunal held that Krause "pushed" the dryer top and that it was not established that the top pushed by Walker was the one which hit Norman Krause.Under secs. 108.09 (7) (b) and 102.23 (1), Stats., findings of fact made by the commission acting within its powers, and in the absence of fraud, are conclusive. Northwestern Asbestos Cork Co. v. Industrial Comm. (1963), 21 Wis.2d 554, 559, 124 N.W.2d 628. This court will affirm the findings of fact if supported by credible evidence on the record as a whole. Kansas City Star Co. v. ILHR Department (1973), 60 Wis.2d 591, 602, 211 N.W.2d 488, rehearing denied, 62 Wis.2d 783, 217 N.W.2d 666.
Despite ample evidence to the contrary, there was credible evidence to the effect that Walker pushed rather than threw the top. The finder of fact did not have to believe the testimony of Krause that Walker threw the top. It did not have to believe the conclusion drawn from the tests done in trying to push "a piece through the press." This is especially true where the appeal tribunal found that it had not been established that the one Walker pushed was the one that cut Krause. The appeal tribunal heard Walker's testimony and the credibility of it was within the tribunal's province.
Since there was credible evidence that Walker pushed the top back toward Krause's press and because weight and credibility is within the tribunal's and the department's province, the finding that Walker pushed the top is conclusive.
As to which top hit Krause, the finding that it was not established that the top pushed by Walker hit Krause must also be affirmed. There were apparently only two eyewitnesses, Walker and Krause. Walker testified that the one he pushed could not have been the one that hit Krause. Krause testified he saw Walker throw the top. Again, the credibility of these witnesses is for the finder of fact to determine.
Therefore, the circuit court was bound by the findings of the appeal tribunal and the department. While the circuit court may have erred in enlarging upon the findings of fact, this alone would not subject the circuit court's decision to reversal. Discrepancies in findings which are unimportant can be disregarded on appeal. Lakeside Oil Co. v. Slutsky (1959), 8 Wis.2d 157, 98 N.W.2d 415. See also sec. 102.23 (2), Stats. It is unimportant whether Walker pushed, threw or hurled the dryer top. The fact is that he put it in motion in the direction from which it came with sufficient force to cause the injury Krause sustained. It is also unimportant which top hit Krause. By putting a dryer top in motion, Walker caused the injury. Question of misconduct.
The applicable statute in this case is sec. 108.04 (5) and (6) which provides:(5) DISCHARGE FOR MISCONDUCT. An employe's eligibility, for benefits based on those credit weeks then accrued with respect to an employing unit, shall be barred for any week of unemployment completed after he has been discharged by the employing unit for misconduct connected with his employment; provided, moreover, that such employe shall be deemed ineligible for benefits (from other previous employer accounts) for the week in which such discharge occurred and for the 3 next following weeks.
"(6) DISCIPLINARY SUSPENSION. As to an employe's weeks of unemployment by reason of a disciplinary suspension by a given employer, the employe shall be ineligible for benefits as follows:
"(a) If the suspension was for misconduct connected with his employment, he shall be ineligible from the given employer's account for each such week and ineligible from other previous employer accounts for the first 3 such weeks.
"(b) If the suspension was for other good cause connected with his employment, he shall be ineligible for the first 3 such weeks."
It has been frequently noted by this court that the term "misconduct connected with his employment" is not defined in ch. 108, Stats. The leading case of Boynton Cab Co. v. Neubeck, supra, however, provides that definition at page 259:
". . . [T]he intended meaning of the term `misconduct,' as used in sec. 108.04 (4) (a), Stats., is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed `misconduct' within the meaning of the statute."
While the disjunctive "or" as used in the first sentence of this definition would indicate that intentional wrongful conduct is not necessary for a finding of misconduct, subsequent decisions by this court have emphasized the intent and attitude of the employee.
In Cheese v. Industrial Comm. (1963), 21 Wis.2d 8, 14, 123 N.W.2d 553, it was said that ". . . the crucial question is the employee's intent or attitude which attended his act or omission which is alleged to be disqualifying misconduct." In Milwaukee Transformer Co. v. Industrial Comm. (1964), 22 Wis.2d 502, 511, 126 N.W.2d 6, this court found the general standard for determining misconduct to be whether the conduct reflects an intentional and substantial disregard of the employer's interests or the employee's duties. Finally, in Baez v. ILHR Department (1968), 40 Wis.2d 581, 588, 162 N.W.2d 576, it was said that ". . . for an employee's behavior to be misconduct it must be found to be an intentional and unreasonable interference with his employer's interest."
At the same time however, this court has recognized that it is a reasonable interpretation of "misconduct" to conclude that a recurrent pattern of negligent acts, so serious as to amount to gross negligence and thereby evince an intentional and substantial disregard of the employer's interests, amounts to misconduct. Fitzgerald v. Globe-Union, Inc. (1967), 35 Wis.2d 332, 151 N.W.2d 136.
Therefore, the emphasis on the employee's intent does not mean that the intent must actually exist. If the negligence of the employee is such that it manifests equal culpability, wrongful intent or evil design, that employee is guilty of misconduct.
The appeal tribunal found that it was not established that Walker had any intention of injuring Krause or that he could have foreseen that this action might result in injury to anyone. While such a finding is conclusive it is not the sole criterion for determining if there has been misconduct.
The appeal tribunal also found that Walker's conduct under the circumstances was not so unreasonable as to constitute gross negligence or reckless disregard of the welfare of others. Any determination as to whether or not certain conduct amounts to misconduct, however, is a conclusion of law and a determination by the appeal tribunal or commission is not binding on the courts. Cheese v. Industrial Comm., supra.
The conduct involved in this case was a single isolated incident. However, it was not minor or unintentional carelessness. Walker pushed the 10 pound, 14 ounce dryer top with sharp edges with sufficient force to cause a serious injury to Krause. Such conduct fits within the Boynton Cab Co. case's definition that ". . . carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design . . . " is misconduct under sec. 108.04 (5), Stats.
Walker's conduct was not due to inefficiency or incompetency so as to fit him into the class of "less capable workers" who are unemployed and for whom unemployment compensation may well have been designed. Walker's reaction to the pinched finger put a dangerous object in the air and thereby endangered the safety of anyone in its path. We think such conduct, as a matter of law, constitutes misconduct.
By the Court. — Judgment affirmed.